THE CONSTITUTION OF INDIA

Introduction
The Preamble to the Constitution of India records the aims and aspirations of the people of India
which have been translated into the various provisions of the Constitution. A Preamble means
the introduction to the statute. The objectives before the Constituent Assembly were to
Constitute India into a “sovereign democratic republic” and to secure its citizens “justice liberty,
equality and fraternity”. The ultimate aim of the makers of the Constitution was to have a
welfare state and an egalitarian society projecting the aims and aspirations of the people of India
who sacrificed everything for the attainment of country’s freedom. It is worthwhile to note that
the preamble was adopted by the Constituent Assembly after the Draft Constitution had been
approved. The basic idea behind it was the preamble should be in conformity with the provisions
of the constitution and express in a few words the philosophy of the constitution. It may be
recalled that after the transfer of power, the constituent Assembly became sovereign, which is
reflected in the use of words “give to ourselves this constitution” in the preamble. It also implied
that the preamble emanated from the people of India and sovereignty lies with them.

Chief Jusitce Subba Rao in Golak Nath v. State of Punjab[i] had held that “The preamble to an
Act sets out the main objectives which the legislation is intended to achieve”.

Unlike the Constitution of Australia, Canada or U.S.A., the constitution of India has an elaborate
preamble. The purpose of the preamble is to clarify who has made the constitution, what is its
source, what is the ultimate sanction behind it, what is the nature of the polity which is sought to
be established by the constitution.

3. Meaning and Concept

The term ‘Preamble’ means the introduction to a statute. It is the introductory part of the
constitution. A preamble may also be used to introduce a particular section or group of
sections.[iii] According to Chambers Twentieth Century Dictionary, a preamble means preface,
introduction, especially that of an act of Parliament, giving its reasons and purpose – a prelude.
[iv]

Black’s Law Dictionary states that the preamble means a clause at the beginning or a statute
explanatory of the reasons for its enactment and the objectives sought to be accomplished.

Generally, a Preamble is a declaration made by the legislature of the reasons for the passage of
the statute and is helpful in the interpretation of any ambiguities within the statute to which it is
prefixed

 Object, Purpose and Scope of the Preamble

The Preamble does not grant any power but it gives a direction and purpose to the Constitution.
It outlines the objectives of the whole Constitution. The Preamble contains the fundamentals of

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the constitution. The preamble to an Act sets out the main objectives which the legislation is
intended to achieve.

The proper function of preamble is to explain and recite certain facts which are necessary to be
explained and recited, before the enactment contained in an act of Parliament could be
understood.

The Preamble serves the following purposes:

a) It indicates the source from which the Constitution comes, viz., the people of India.

b) It contains the enacting clause which brings into force, the Constitution which makes it an
act of the people, for the people and by the people.

c) It declares the rights and freedoms which the people of India intended to provide to all
citizens and the basic type of government and polity which was to be established. [xi]

 Preamble: Whether a part of the Constitution?

It has been highly a matter of arguments and discussions in past that whether Preamble should be
treated as a part of constitution or not. The vexed question whether the Preamble is a part of the
Constitution or not was dealt with in two leading cases on the subject:

1. Beruberi Case

2. Kesavananda Bharati case

Berubari[xii] case was the Presidential Reference “under Article 143(1) of the Constitution of
India on the implementation of the Indo-Pakistan Agreement Relating to Beruberi Union and
Exchange of Enclaves which came up for consideration by a bench consisting of eight judges
headed by the Chief Justice B.P. Singh. Justice Gajendragadkar delivered the unanimous opinion
of the Court. The court ruled out that the Preamble to the Constitution, containing the declaration
made by the people of India in exercise of their sovereign will, no doubt it is “a key to open the
mind of the makers” which may show the general purposes for which they made the several
provisions in the Constitution but nevertheless the Preamble is not a part of the Constitution.

Kesavananda Bharati[xiii] case has created history. For the first time, a bench of 13 judges
assembled and sat in its original jurisdiction hearing the writ petition. Thirteen judges placed on
record 11 separate opinions. To the extent necessary for the purpose of the Preamble, it can be
safely concluded that the majority in Kesavananda Bharati case leans in favor of holding,

(i) That the Preamble to the Constitution of India is a part of the Constitution;

(ii) That the Preamble is not a source of power or a source of limitations or prohibitions;

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(iii) The Preamble has a significant role to play in the interpretation of statutes and also in the
interpretation of provisions of the Constitution.

Kesavanada Bharati case is a milestone and also a turning point in the constitutional history of
India. D.G. Palekar, J. held that the Preamble is a part of the Constitution and, therefore, is
amendable under Article 368. It can be concluded that Preamble is introductory part of our
Constitution. Preamble is based on the Objective Resolution of Nehru. Preamble tells about the
nature of state and objects that India has to achieve. There was a controversial issue whether
Preamble was part of Indian Constitution there were number of judicial interpretation but finally
Kesavanada Bharati case it was held that the Preamble is a part of the Constitution

 Amendment to the Preamble

The issue that whether the preamble to the constitution of India can be amended or not
was raised before the Supreme Court in the famous case of Kesavananda Bharati v. State of
Kerala, 1973[xiv]. The Supreme Court has held that Preamble is the part of the constitution and
it can be amended but, Parliament cannot amend the basic features of the preamble. The court
observed, “The edifice of our constitution is based upon the basic element in the Preamble. If any
of these elements are removed the structure will not survive and it will not be the same
constitution and will not be able to maintain its identity.

The preamble to the Indian constitution was amended by the 42nd Amendment Act, 1976
whereby the words Socialist, Secular and Integrity were added to the preamble by the 42nd
amendment Act, 1976, to ensure the economic justice and elimination of inequality in income
and standard of life. Secularism implies equality of all religions and religious tolerance and does
not identity any state religion. The word integrity ensures one of the major aims and objectives
of the preamble ensuring the fraternity and unity of the state.

4. Contents of the Preamble

Preamble is part of our constitution. The contents of Preamble play an important role in
interpretation of our constitution. The Preamble declares:

“WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a
SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its
citizens:

JUSTICE, social, economic and political;

LIBERTY, of thought, expression, belief, faith and worship;

EQUALITY of status and of opportunity;

and to promote among them all

FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;

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IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, DO HEREBY
ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.”

 “We, the People of India”

The preamble begins with the words “We the people of India…” thus clearly indicating the
source of all authority of the constitution. At the dawn of independence, we were 350 million
(approximately). This figure constituted 1/6th of the humanity. The words “We, the people of
India” declares in umabmiguios terms that the Constitution has been adopted, enacted and given
to themselves by the people of India. It emphasizes the sovereignty of the people and the fact that
all powers of government flow from the people. It is the people of India on whose authority the
Constitution rests. The preamble surmises that it is the people of India who are the authors of the
constitution.

‘We, the people if India’, means in other words, ‘we, the citizens of India’,

Sovereign

According to preamble, the constitution of India has been pursuance of the solemn resolution of
the people of India to constitute India into a ‘Sovereign Democratic Republic’, and to secure well
defined objects set forth in the preamble. Sovereignty denotes supreme and ultimate power. It
may be real or normal, legal or political, individual or pluralistic. In monarchial orders,
sovereignty was vested in the person of monarchs. But, in republican form of governments,
which mostly prevail in the contemporary world, sovereignty is shifted to the elected
representatives of the people. According to D.D Basu, the word ‘sovereign’ is taken from article
5 of the constitution of Ireland. ‘Sovereign or supreme power is that which is absolute and
uncontrolled within its own sphere’. In the words of Cooley, “A state is sovereign when there
resides within itself supreme and absolute power, acknowledging no superior”. Sovereignty, in
short, means the independent authority of a state. It has two aspects- external and internal.
External sovereignty or sovereignty in international law means the independence of a state of
the will of other states, in her conduct with other states in the comity of nations. Sovereign in its
relation between states and among states signifies independence. The external sovereignty of
India means that it can acquire foreign territory and also cede any part of the Indian territory,
subject to limitations(if any) imposed by the constitution. On the other hand, internal
sovereignty refers to the relationship between the states and the individuals within its territory.
Internal sovereignty relates to internal and domestic affairs, and is divided into four organs,
namely, the executive, the legislature, the judiciary and the administrative. Though India became
a sovereign country on 26th January, 1950, having equal status with the other members of the
international community, she decided to remain in the Commonwealth of Nations. Pandit Nehru
declared that India will continue – “her full membership of the Commonwealth of Nations and
her acceptance of the King as the symbol of the free association of the independent nations and
as such the Head of the Commonwealth”. Her membership of the Commonwealth of Nations and
that of the United Nations Organization do not affect her sovereignty to any extent. It is merely a
voluntary association of India and it is open to India to cut off this association at her will, and
that it has no constitutional significance.

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  Socialist

The constitutional commitment to the goal of socio-economic justice, as envisaged by the

original preamble by the constitution of India has been fortified by the constitution (42 nd
Amendment) Act, 1976.

 Secular

The Supreme Court in St. Xavier’s College v. State of Gujarat[xxvi], explained “secularism is
neither anti-God nor pro-God, it treats alike the devout, the agnostic and the atheist. It eliminates
God from the matters of the state and ensures that no one shall be discriminated against on the
grounds of religion”. That, every person is free to mould or regulate his relations with his God in
any manner. He is free to go to God or to heaven in his own ways. And, that worshipping God is
left to be dictated by his own conscience.

In S.R Bommai v. Union of India[xxvii], a nine judge bench of the apex court observed that the
concept of “Secularism” was very much embedded in our constitutional philosophy. What was
implicit earlier had been made explicit by the constitution (42 nd amendment) in 1976.

In Aruna Roy v. Union of India[xxviii], the Supreme Court has said that secularism has a
positive meaning that is developing, understanding and respect towards different religions.
Recently in I.R Coelho v. State of Tamil Nadu[xxix] it has been held that secularism is a matter
of conclusion to be drawn from various Articles conferring Fundamental Rights. “If the secular
character is not to be found in Part III”, the Court ruled, “it cannot be found anywhere else in the
Constitution, because every fundamental right in Part III stands either for a principle or a matter
of detail”.

 Democratic

The term Democracy is derived from Greek words ‘demos’ which means ‘people’ and ‘kratos’
which means ‘authority’. It thus means government by the people. Democracy may properly be
defined as that form of government in the administration of which the mass of adult popolutaion
has some direct or indirect share.

 Republic

A republic means a state in which the supreme power rests in the people and their elected
representatives or officers, as opposed to one governed by the king or a similar ruler. The word
‘republic’ is derived from res publica, meaning public property or commonwealth. According to
Montesquieu, “a republican government is that in which a body, or only a part of people, is
possessed of the supreme power”. The term ‘republic’ is used in distinction to monarchy. A
republic means a form of government in which the head of the state is an elected person and not
a heredity monarch like the king or the queen in Great Britain. Under such a system, the political
sovereignty is vested in the people and the head of the state is the person elected by the people
for a fixed term. In a wider sense, the word ‘republic’ denotes a government where no one holds

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the public power as a proprietary right, but all power is exercised for the common good-where
inhabitants are the subjects and free citizens at the same time. The constitution of India envisions

the Indian government as a ‘republican form of government’, in which, the ultimate power
resides in the body of the people exercised via universal adult suffrage. The president of India
who is the executive head of the state is elected by the people (though indirectly) who holds
office for a term of five years. All citizens are equal in the eyes of law, there is no privileged
class and all public offices are open for all the citizens without any distinction on basis of race,
caste, sex or creed.

Fundamental Rights

Right To Equality- A Fundamental Right 14-18

Article 19-22: Right to Freedom

Article 19, 20, 21 & 22 deal with the different aspects of Personal Liberty, the basic right of a
citizen in a democracy. These articles are as follows
: Article 19: Protection of certain rights regarding freedom of speech, etc
. Article 20: Protection in respect of conviction for offences.
Article 21: Protection of life and personal liberty.
Article 22: Protection against arrest and detention in certain cases.

Article 19: Protection of certain rights regarding freedom of speech, etc

Article 19 is the most important and key article which embodies the “basic freedoms”. Article
19(1) provides that all citizens shall have the right- (originally 7, now 6)
to freedom of speech and expression;
to assemble peaceably and without arms;
to form associations or unions;
to move freely throughout the territory of India;
to reside and settle in any part of the territory of India;
omitted by 44th amendment act. (it was right to acquire, hold and dispose of property)
to practice any profession, or to carry on any occupation, trade or business.

However, Freedom of speech and expression is not absolute. As of now, there are 8 restrictions
on the freedom of speech and expression.
These are in respect of the sovereignty and integrity of the country.
Security of the state
Friendly relations with foreign states
Public Order
Decency
morality
Contempt of Court
Defamation Incitement to offence Sovereignty and integrity of India.

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Article 20(1) of the Indian constitution provides necessary protection
against ex post facto law.

Article 20(2) Double Jeopardy - Can an accused be actually punished twice for same offence in India

1.1 Meaning of Jeopardy

The word Jeopardy refers to the “danger” of conviction that an accused person is subjected to when one
trial for an criminal offence. [1]

1.2 Meaning of Double Jeopardy

The act of putting a person through a second trial of an offence for which he or she has already been
prosecuted or convicted. [2]

This means that if a person is prosecuted or convicted ones cannot be punished again for that criminal
act. And if a person is indicated again for the same offence in the court then he has the plea of Double
Jeopardy as a valid defense.

Fundamental rights are guaranteed by the constitution. One of these rights is provided under
article 21 which reads as follows:-

Article 21. Protection Of Life And Personal Liberty: No person shall be deprived of his life or
personal liberty except according to procedure established by law.

The meaning of the word life includes the right to live in fair and reasonable conditions, right to
rehabilitation after release, right to live hood by legal means and decent environment. The
expanded scope of Article 21 has been explained by the Apex Court in the case of Unni Krishnan
v. State of A.P. and the Apex Court itself provided the list of some of the rights covered under
Article 21 on the basis of earlier pronouncements and some of them are listed below:
(1) The right to go abroad.
(2) The right to privacy.
(3) The right against solitary confinement.
(4) The right against hand cuffing.
(5) The right against delayed execution.
(6) The right to shelter.
(7) The right against custodial death.
(8) The right against public hanging.
(9) Doctors assistance

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.

ARTICLE 22

Article 22 of Constitution of India deals with Protection against arrest and detention in
certain cases.

(1) No person who is arrested shall be detained in custody without being informed, as soon as
may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be
defended by, a legal practitioner of his choice.

(2) Every person who is arrested and detained in custody shall be produced before the nearest
magistrate within a period of twenty-four hours of such arrest excluding the time necessary for
the journey from the place of arrest to the court of the magistrate and no such person shall be
detained in custody beyond the said period without the authority of a magistrate.

(3) Nothing in clauses (1) and (2) shall apply —

(a) to any person who for the time being is an enemy alien; or

(b) to any person who is arrested or detained under any law providing for preventive detention.

(4) No law providing for preventive detention shall authorise the detention of a person for a
longer period than three months unless—

(a) an Advisory Board consisting of persons who are, or have been, or are qualified to be
appointed nothing in this sub-clause shall authorise the detention of any person beyond the
maximum period prescribed by any law made by Parliament under sub-clause (b) of clause (7);
or

(b) such person is detained in accordance with the provisions of any law made by Parliament
under subclauses (a) and (b) of clause (7).

(5) When any person is detained in pursuance of an order made under any law providing for
preventive detention, the authority making the order shall, as soon as may be, communicate to
such person the grounds on which the order has been made and shall afford him the earliest
opportunity of making a representation against the order.

(6) Nothing in clause (5) shall require the authority making any such order as is referred to in
that clause to disclose facts which such authority considers to be against the public interest to
disclose.

(7) Parliament may by law prescribe—

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(a) the circumstances under which, and the class or classes of cases in which, a person may be
detained for a period longer than three months under any law providing for preventive detention
without obtaining the opinion of an Advisory Board in accordance with the provisions of sub-
clause (a) of clause (4);

(b) the maximum period for which any person may in any class or classes of cases be detained
under any law providing for preventive detention; and

(c) the procedure to be followed by an Advisory Board in an inquiry under ***[sub-clause (a) of
clause (4)].

32. Remedies for enforcement of rights conferred by this Part

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights
conferred by this Part is guaranteed

(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the
nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be
appropriate, for the enforcement of any of the rights conferred by this Part

(3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ), Parliament
may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the
powers exercisable by the Supreme Court under clause ( 2 )

(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this
Constitution

Writs are issued by the Supreme Court to enforce the fundamental rights of Indian citizens, guaranteed
by the constitution.
The power to issue writs is a provision under "Right to Constitutional Remedies".

SC issues 5 types of writs:

1. Habeas Corpus (meaning - you may have the body) : To release a person who has been detained
unlawfully, whether in prison or in private custody.

Example: The habeas writ was used in the Rajan case, a student victim of torture in local police custody
during the nationwide Emergency in India in 1976.On 12th March 2014, Subrata Roy's counsel
approached the Chief Justice moving a habeas corpus petition. It was also filed by Panthers Party to
protest the imprisonment of Anna Hazare.

2. Mandamus (meaning - we command) : To secure the performance of public duties by a lower

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court, tribunal or public authority, which they fail to do on their own.
Example: mainly to keep power pf police in check when they resort to hooliganism.

3. Certiorari (meaning - to be certified) : To quash an order already passed by a lower court,

tribunal or quasi-judicial authority.
Example: Pankaj Kumar Ganguly And Ors. vs Bank Of India And Ors. on 17 April, 1956

4. Prohibition: To prohibit an inferior court from continuing the proceedings in a case when it is
outside their jurisdiction.
Example: A.Dhanasekaran vs The Commissioner on 21 March, 2011

5. Quo warranto (meaning - what is your authority) : To restrain a person from holding a public
office to which he is not entitled.
Example: removal of CVC of India PJ Thomas by SC.

Writ jurisdiction is enjoyed only by the Supreme Court and High Courts under Article 32 and 226 of the
Constitution, respectively. A writ petition can only be filed against the State and not against private
individuals or organisation. A writ is issued by the court, in general, against the State. Under their writ
jurisdiction Supreme Court and High Courts issue appropriate writs in the nature of Habeas Corpus,
Mandamus, Prohibition, Certiorari, and Quo Warranto.

Writ of Habeas Corpus:

This writ is used to protect individual's liberty. It is issued when a person is detained illegally and
wrongfully. This writ can be filed before the court by any individual or organisation, not necessarily the
aggrieved individual. This writ can be issued by the court both against the State and individual. Habeas
Corpus literally means 'to have the body' i.e. physically producing the person whose detention is
questioned before the court in order to enable the court to ascertain the grounds of detention.
However, if all the material facts relating to the detention of the person are made available to the court,
the court may not insist upon the physical production of detained person. When the court finds the
detention illegal or unlawful, it will order the release of the person henceforth.

Writ of Mandamus:
This petition can be filed before the court only by the aggrieved individual. It can be filed only when the
legal right of the person is violated. Private rights can't be enforced through the petition of Mandamus.
It can be issued by a court only against a public authority or a person holding a public office. It cannot by
issued against an individual or private organisation. It is issued when a public authority or officer is
charged with a legal duty and he/she has failed to perform the duty which has resulted in the violation
of a legal rights of the petitioner. Mandamus literally means 'command', therefore when it is issued it
commands a public authority or officer to do or not to do something which is in the nature of his/her
public duty. This writ can't be issued against President and Governors.

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Writ of Prohibition:
This writ can be issued only against a judicial or quasi-judicial body and not against non-judicial bodies.
This petition can be filed only by the aggrieved individual. This writ is issued when a judicial/quasi-
judicial body takes up a case for hearing in excess or in absence of its jurisdiction. The purpose of the
court is to prohibit the judicial/quasi-judicial body from proceeding further with the case. (Here
judicial/quasi-judicial bodies could be lower courts, tribunals, for example.)

Writ of Certiorari:
It is similar to above writ in all respect except that it is issued after a judicial/quasi-judicial body has
completed a trial of a case and pronounced it judgement/direction/order in excess or in absence of its
jurisdiction. Thus the purpose of the writ is to quash or nullify the judgement/direction/order issued by
such a judicial/quasi-judicial body.

Writ of Quo Warranto:

This writ can be issued only against a person holding a public office in order to ensure that a public
office is not usurped by a person who is not qualified to hold the office. This petition can be filed by any
person. When this writ is issued, it has the effect of removal of the person from public office with
immediate effect.
E.g. U. N. Rao vs Indira Gandhi, 1971. In this petition the appellant had prayed that a writ of qua
warranto be issued to the respondent, Smt. Indira Gandhi, and it be declared that the respondent has no
constitutional authority to the office of and to function as Prime Minister of India. The petition was
dismissed by the court and no such writ was issued against Smt. Indira Gandhi.

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